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"New Evidence That Carbon Nanotubes Have Potential to Cause Mesothelioma," ARIAS-US Quarterly Spring 2018

"Since the early 1960s, mesothelioma has been identified as the aggressive and incurable cancer strongly and almost exclusively associated with exposure to asbestos," partners Thomas P. Bernier and Brendan H. Fitzpatrick write in ARIAS-US Quarterly. There is, however, a growing body of scientific evidence supporting a causal link between mesothelioma and exposure to long-fiber carbon nanotubes."

In their article, Tom (chair of the firm's Nanotechnology Practice Group) and Brendan examine that evidence and its implications for the insurance and reinsurance industries. Carbon nanotubes (CNTs) "are a cornerstone of many significant breakthroughs occurring at the nanoscale level," they point out — breakthroughs in fields already including "appliances, coatings, electronics, food, beverages, toys, games, clothing, cosmetics, paint, homes, pharmaceuticals, electronics, and textiles," with more progress expected in "engineering technologies, space exploration, pollution control, and national security." Yet, Tom and Brendan caution, "the study and understanding of the health and environmental risks associated with the use of nanomaterials lag behind research into new applications."

"Of note to insurers and reinsurers is the possibility of nanomaterials as a cause of mesothelioma in humans," they observe. "Also of concern, but not the subject of this article, is the environmental impact of a release of nanomaterials. Much is unknown about the impact of bioaccumulation of nanomaterials in nature or of the interaction of nanomaterials with other substances in uncontrolled environment."

"Although there is no nanomaterial personal injury litigation to date, it may only be a matter of time," Tom and Brendan conclude. "[I]f studies establish causation, workers' compensation claims and direct and bystander consumer product user claims could follow, despite improvements in industrial hygiene practices. Likewise, one could see various third-party claims, perhaps even from entities in asbestos-related mesothelioma litigation and claims for medical monitoring. Class actions arising from product labeling or false advertisement should be anticipated. Certainly, federal and state regulatory actions must be considered as well."

"For now, those insuring manufacturers using nanomaterials in their products, as well as those insuring entities with potential liabilities for asbestos-related diseases, must keep up to date on research. The indicators for a major toxic mass tort are present and building, and the potential causal connection between nanomaterials and mesothelioma may affect the future of asbestosrelated personal injury litigation."

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